In the case of Oui v Townsville Aboriginal & Torres Strait Islander Corporation Health Services [2012] FWA 2713, FairWork Australia (FWA) held in a situation that is common in many Australian workplaces, that a manager was unfairly dismissed after criticism of her dealings with a subordinate employee.

‘Proper context’

The manager had allegedly been abrupt and abusive towards the employee and had responded sarcastically to suggestions that the employee would be suitable for a higher position. In holding that the dismissal was harsh, FWA found that, in many instances, the manager had been entitled to feel aggrieved by the way in which the employee had performed her work.

Commissioner Simpson held that ‘in the context it would appear that [the manager] had some justification for expressing the views that she did and on that basis I am not satisfied [that the conduct] was bullying or harassment.’ Indeed, the Commissioner went further, saying that, given the conduct of the subordinate employee (who had a chequered employment history herself, in particular failing to attend work for two weeks because her car had broken down), in some instances the manager had in fact acted with restraint!

In another specific incident, the manager had allegedly used abusive and condescending language towards the employee after being accused of stealing ideas and passing them off as her own. The Commissioner agreed that the manager’s conduct was unprofessional but held that, in the context, it was nevertheless appropriate because she was being directly challenged by her subordinate in front of a meeting of other staff members, something that any manager would find embarrassing. According to the Commissioner, this meant that the retaliation needed to be seen in its ‘proper context’.

Investigation

The Commissioner was also highly critical of the employer’s investigation into the alleged misconduct. He found that almost all of the evidence relied upon came from a single witness who had a history of grievances with the manager. Further, the investigator who compiled the ultimately determinative investigation report was not called to give evidence at the FWA hearing and therefore could not be cross-examined. Finally, it was apparent that the investigator made important findings that were never put to the manager in the course of the investigation, meaning that she was never given an opportunity to respond.

The Commissioner concluded by stating: ‘I am satisfied that the way the investigation was conducted was unfair and the manner in which the investigation report was compiled and produced was unsatisfactory for the purposes of the findings reached. The fact that [the manager] was not given an opportunity to respond to the findings in it before the employer summarily dismissed her compounds the problem.’

Implications for employers

This case puts employers on notice that FWA will scrutinize a dismissal for alleged abusive behavior by looking not solely at the behaviour of the dismissed employee, but also at the context surrounding the dismissal and behaviour. If the employee’s demeanour can be justified in the totality of the circumstances, the employee’s dismissal will be found to be harsh, unjust or unreasonable.

The decision also highlights the continued importance of following procedural fairness when carrying out a dismissal and, in particular, the importance of a thorough and fair investigation where an employee’s conduct is contentious.